APM 2009-01: Market Research Notices
March 13, 2009
To: Heads of Contracting Activity
From: Nancy J. Gunderson / S /
Acting Senior Procurement Executive
Subject: HHS Interim Acquisition Guidance
APM-2009-01: Market Research Notices
Effective Date: Immediately
1. Purpose: This memorandum specifies the standard instructions and content requirements (Attachment A) for developing the following types of market research notices: (a) research and development (R & D) sources sought; (b) request for information (RFI); (c) sources sought (for non-R & D); and (d) small business sources sought. It also promulgates interim acquisition guidance pending formal incorporation in the HHS Acquisition Regulation (HHSAR) (Attachment B).
2. Background: Part 10 of the Federal Acquisition Regulation (FAR) encourages agencies to conduct market research to the maximum extent practicable. Primary market research techniques identified in the FAR include R & D sources sought notices and RFIs. FAR Subparts 5.2 and 10.002, respectively, specify the circumstances and objectives for issuing such notices. The FAR does not identify a “sources sought” notice (which is comparable to an R & D sources sought notice, but used only for potential non-R & D projects). However, FAR Part 10 is clear that market research must be performed to foster competition for all types of acquisitions. Also, while the FAR does not identify a “small business sources sought” notice, FAR subpart 19.2 indicates that it is the policy of the Government to provide maximum practicable acquisition opportunities to small businesses. When any of these four types of notices is used, it is normally issued for publication on the Federal Business Opportunities (FedBizOpps) site available at: http://www.fedbizopps.gov.
3. Analysis and Discussion: HHS contracting activities have used these types of market research notices for three primary purposes: (a) to determine whether there are any items/services offered in the marketplace that can satisfy a proposed requirement; (b) to identify whether there are any organizations in the marketplace with the capability of providing the required items or services; or (c) to identify whether there are any small businesses that can provide the required items or services. In the first and second instances, the results of the notices can determine whether an acquisition is feasible. In the third instance, the results may determine whether a small business set-aside is possible.
While HHS contracting activities have used these notices for the purposes cited, their content and format, the information provided and requested, and the way of identifying them have varied significantly. Therefore, the purpose of this interim acquisition guidance is to specify:
- the purpose of the notices, their differences, and the circumstances when each notice may be used;
- the content requirements of the notices, including what information should be provided to potential respondents and what information may be requested from them; and
- how the notices should be titled and formatted.
This interim acquisition guidance also provides precautions regarding the consideration and evaluation of the information respondents submit. (Note: Given the combined exploratory (market research) and competitive nature of Broad Agency Announcements (BAAs), none of the notices specified in this memorandum should be used in conjunction with a BAA.)
4. Objectives: HHS contracting activities’ use of a standard approach for developing market research notices is intended to:
- Obtain the necessary information to support decision-making in the acquisition planning stage;
- Eliminate inconsistencies in how information received from responding organizations is considered or evaluated and
- Increase competition for HHS acquisitions, the acquisition of commercial items, and the use of small business set-asides.
5. Applicability: HHS contracting activities should immediately implement these requirements and use the notice preparation instructions provided in Attachment A in conjunction with applicable FedBizOpps “Create New Notice” instructions available at: http://www.fedbizopps.gov.
6. Impact on HHSAR: The interim acquisition guidance in Attachment B modifies the HHSAR, as follows:
i. HHSAR 305.205, Special situations: This section specifies that an R & D sources sought notice may be issued whenever a sufficient number of sources has not been identified to obtain adequate competition for a potential R & D project/program. The primary purpose of an R & D sources sought notice is to identify all potential sources, regardless of organizational type and size classification, and determine their capabilities to fulfill a potential R & D Government requirement.
ii. HHSAR 310.001, Policy (Market Research): This section specifies that a sources sought notice may be issued whenever a sufficient number of sources have not been identified to obtain adequate competition (for a non-R & D project). The primary purpose of a sources sought notice is to identify all potential sources, regardless of organizational type and size classification, and determine their capabilities to fulfill a potential non-R & D Government requirement.
iii. HHSAR Part 315.201, Exchanges with industry before receipt of proposals: This section specifies that an RFI may be issued whenever an OPDIV requires technical, scientific, or business information and input from the marketplace for project planning purposes regarding the availability of existing or potential solutions. An RFI may be used for any type of requirement, but is particularly appropriate for complex projects involving R & D, information technology, construction, and other highly technical requirements. An RFI may also be issued to identify and resolve issues concerning the Government’s requirements and the planned acquisition strategy.
iv. HHSAR 319.202 – Locating small business sources: This section specifies that a small business sources sought notice may be issued when the Government cannot determine in advance (through other forms of market research or discussions with the cognizant OSDBU Small Business Specialist) whether a solicitation exceeding the simplified acquisition threshold can be set aside exclusively for small business participation.